Changes to Title IX Regulations: Compliance and Defense

Title IX of the
Education Amendments of 1972 put in place certain protections for victims of sexual assault, misconduct,
discrimination, and related wrongs in educational programs or activities.
In 2020, for the first time in many years, the
US Department of Education made changes to Title IX processes by issuing new regulations regarding
Title IX sexual harassment claims. The new regulations make some substantial
changes and require federally funded universities and schools to act quickly
to remain compliant. For those accused of Title IX violations, the new
regulations provide much-needed protections. However, the new Title IX
regulations also leave educational institutions with questions about the
implications of some of the new regulations.

Educational institutions need an Indiana Title IX lawyer who understands
how the new regulations impact Title IX compliance, and anyone accused
of Title IX sexual harassment violations needs an attorney who understands
how the new rules impact Title IX defense. You’ll find both at Keffer
Hirschauer LLP. We are passionate about helping Indiana universities and
schools navigate the changing tides of Title IX regulations to protect
both the school and defending those accused of a Title IX violation to
ensure the protection of their rights.

The 2020 Changes to Title IX

On May 6, 2020,
Secretary Betsy DeVos, the head of the US Department of Education, released the final regulations
regarding Title IX sexual harassment claims. The regulations materially
alter the nature of Title IX procedures regarding sexual harassment complaints.
The changes to Title IX resulting from the new regulations require federally
funded universities and schools to change the way they investigate and
adjudicate Title IX sexual harassment claims. Schools also must offer
protections and more equal footing for those accused of sexual harassment
in the educational setting.

While the new regulations add much-needed protections for those accused
of sexual harassment in violation of Title IX, they also require universities
and schools to hastily make significant changes to current Title IX policies
and procedures to secure those protections and to remain compliant with
the law. Some educational institutions are likely to struggle with the
short timetable to become compliant as well as funding and logistical
difficulties.

At Keffer Hirschauer LLP, we have deep knowledge of the Title IX procedures
currently in place at Indiana universities and schools and the challenges
faced in efforts to become compliant with the new Title IX standards.
With a thorough understanding of Title IX law gained through years as
successful criminal and Title IX defense lawyers and training as certified
Title IX investigators, we provide Title IX guidance to Indiana universities
and schools on compliance and protect the rights of employees and students
facing Title IX complaints.

An Overview of Title IX Sexual Harassment

Title IX was enacted to extend sex-based discrimination protections to
the educational setting. At its core, the statute prohibits any sex-based
conduct that could result in:

Exclusion from participation in any educational program or activity

Denial of the benefits of an educational program or activity

Discrimination in any educational program or activity

Frequently used as the basis for ensuring equal access of both sexes to
athletic and other programs, in more recent years it has been interpreted
as prohibiting sexual harassment or violence in the educational setting.

With a single sentence in federal law, the legislation has created a litany
of obligations on federally funded educational institutions. In recent
years, those obligations have been expanded to include the prohibition
of sexual harassment. Federal regulations shape the interpretation and
enforcement of Title IX. The changes to Title IX rules detailed in the
May 2020 regulations alter that landscape, significantly shifting the
definitions, procedures, and focus of Title IX cases.

The Changes to Title IX under the 2020 Regulations

The Title IX regulations released in May 2020 usher in a new direction
for Title IX procedures, focusing on or at least adding significant protections
for the accused. Where the prior administration’s 2011 “Dear
Colleague” letter offered non-binding guidance, the Trump administration’s
new rules, which make
sweeping changes to Title IX regarding sexual harassment claims, has the force of law.

The new regulations impact how schools must treat and investigate claims
of Title IX sexual harassment. Some of the major changes include:

A
narrower definition of sexual harassment now requires “severe, pervasive, and objectively offensive”
conduct. Quid pro quo sexual harassment could meet the definition. A single
incident of any type of sexual harassment may not meet the new definition,
although stalking, dating violence, and sexual assault do not have to
be severe or pervasive to qualify.

A
narrower definition of locations of incidents schools are required to investigate includes only incidents that occur in the United States during school-owned
or -sponsored off-campus activities (such as educational trips or fraternities
recognized by the school) but not in independently owned off-campus apartments
or in study abroad programs.

Colleges may designate only certain employees to have
mandatory reporting requirements. However, all employees at K-12 schools are obligated to report Title
IX sexual harassment.

All Title IX officials at a school must receive training on Title IX and its regulations, including the definition of sexual harassment,
how Title IX applies to the school’s programs and activities, how
to conduct a formal Title IX grievance process, and how to be an impartial
decisionmaker. Colleges and universities must also publish the training
materials online.

A school at any level that receives a formal complaint must proceed with a
formal grievance process, which must include a
live hearing with cross examination.

Schools may no longer use the single-investigator model. In other words, the
Title IX investigator of a sexual harassment complaint cannot also be the
person who adjudicates at the hearing.

The
accused may use a legal adviser or lawyer to cross examine the complainant.

A school
may raise the burden of proof to the clear and convincing standard as long as the standard applies equally to faculty/employees and students.

The school receiving a sexual harassment report must
provide the accused in writing the allegationsand the evidence gathered. If the accused is a minor, the school must also provide this writing
to the parents of the accused.

All schools must engage a grievance process for every formal complaint
and respond meaningfullyand/or offer supportive measures to every known alleged sexual harassment victim.

Designated
Title IX personnel dealing with a complaint must be free of conflicts of interest regarding the parties to the complaint.

Schools must provide anyone accused of Title IX sexual harassment with a
written assurance of the presumption of innocence.

Schools must
retain written records for seven years of sexual harassment complaints and the actions taken in response.

In addition to redefining prohibited conduct, the new regulations also
require schools to do the following:

Provide supportive measures to both the victim and those accused of Title
IX violations to preserve or restore access to educational programs or
activities even if no formal complaint is filed

Provide remedies to restore or establish access to educational programming
and activities when the investigative and evaluative process results in
a finding of responsibility

Offer an appeal process to both parties if offered at all

Allow mediation of a Title IX complaint, an option previously prohibited
under Title IX

Significantly, the new Title IX regulations require schools to investigate
a Title IX complaint only if they have actual knowledge of sexual harassment
that occurred in the school’s educational program or activity against
a person in the United States. This means that the school’s Title
IX burden is lessened somewhat in regard to the investigations it is obliged
to investigate and adjudicate. Additionally, a school can be held liable
under Title IX only if it is deliberately indifferent to known sexual
harassment.

At their core, the new rules redefine sexual harassment more narrowly to
be “unwelcome conduct on the basis of sex that is so severe, pervasive,
and objectively offensive that it effectively denies a person equal access
to the school’s education program or activity.” The definition
effectively excludes single incidents that do not constitute an actual
assault, violence, or stalking. The regulations also adopt the definition
of sexual assault from the
Clery Act, bringing Title IX into alignment with the
Violence Against Women Act.

While the changes to Title IX still do not raise the protections for the
accused to the level provided in criminal prosecutions, overall, they
significantly increase the due process protections to anyone accused of
sexual harassment at a federally-funded educational institution.

Title IX Procedures at Indiana Universities and Schools

The procedures for dealing with sex-based harassment and violence claims
in Indiana universities and schools before the issuance of the new Title
IX regulations were based on the 1972 statute, case law, and relatively
recent non-binding guidance from a prior administration. The Obama administration
offered direction to universities and schools in the form of a
“Dear Colleague” letter in 2011, explaining how that administration interpreted the act. In particular,
the letter qualified the definition of sexual harassment and violence
as forms of sex-based discrimination. Schools that failed to investigate
such allegations risked losing their federal funding.

Any Indiana university or school that receives federal funding must comply
with Title IX or risk losing that funding. This has not changed under
the new regulations. Each school’s Title IX policy prescribes the
process for
investigation and resolution of Title IX complaints. These policies and procedures vary across Indiana universities and schools,
but they generally contain:

Definitions of conduct deemed to violate Title IX

The identity of the school’s Title IX coordinator

A description of the school’s Title IX investigation and resolution process

The deadlines for each stage of the Title IX investigation and resolution process

The substantial shift evident in the changes to Title IX under the 2020
regulations necessarily impacts Title IX policies and the rights of those
accused of Title IX violations across the Hoosier state.

Certain aspects of the new Title IX regulations are particularly likely to be
problematic for schools that need to revamp their Title IX policies to
become compliant. For example, large universities may already have an adjudicative process
in place that can easily separate investigators from adjudicators and
provide depth of personnel to avoid conflicts of interest. However, the
elimination of the single investigator model is likely to be extremely
difficult for smaller schools both financially and from a personnel point
of view. Schools will have to identify and train from a small faculty
and staff a much greater number of people to handle the investigations
and to adjudicate the complaints. And the newly expanded Title IX personnel
must be numerous enough to avoid any conflicts of interest.

Another challenging area involves the new regulations’ requirement
that a response on cross examination is required only to
relevant questions. The new regulations do not define relevance in this context.
Non-lawyers, who are usually the decisionmakers in Title IX cases, are
unaware of the vast body of law used to define the term, and the new Title
IX regulations do not define it at all. With proceedings pivoting on the
understanding and employment of “relevance” without a clear
definition, how can schools guarantee compliance with that regulation?

Moreover, schools at all levels are dealing with distance learning, with
faculty and staff also working from home in light of the COVID-19 pandemic.
While the changes to Title IX specifically allow virtual proceedings,
where one or more participants appear using audio and visual technologies,
many schools will likely struggle to coordinate efforts to revise their
Title IX policies in the short time provided while school employees are
spread far and wide and connecting only through technology.

At Keffer Hirschauer LLP, we understand the present challenging circumstances
and are ready and able to help Indiana’s universities and schools
navigate the new Title IX geography. Working with an Indiana Title IX
lawyer from our team can help schools evaluate their current Title IX
policies, identify areas requiring revision for compliance with the changes
to Title IX regulations, and work to establish cost-effective policy.

Narrower ways in which universities and schools are given notice of alleged
sexual discrimination, which could reduce the number of reports the institution
must investigate

Allowing mediation of sexual harassment allegations, a prohibition put
in place to prevent complainants from being pressured into alternative
dispute resolution

Requirement of a live, quasi-judicial proceeding and allowing schools to
increase the Title IX burden of proof to
clear and convincing evidence, either of which could also thwart motivation to report sexual harassment

Establishing a relatively short timeframe for revising Title IX policies,
especially when schools are already dealing with significant turmoil caused
by the coronavirus pandemic

Schools have had Secretary
DeVos’s letter redefining the direction of interpreting Title IX since 2017. Although not binding, the letter did provide schools some
direction and an indication of the changing winds in Title IX law. However,
schools did not have definitive, binding guidance until the issuance of
the new Title IX regulations in early May 2020. Given the length of time
required for the Department of Education to finalize the changes to Title
IX, it’s not surprising if some universities or schools did not
completely revamp their Title IX policies in accordance with the new rules.
However, that leaves such schools with a short timeframe to achieve compliance.

The reorientation of Title IX to include protection for the rights of the
accused and the provision of services to those accused of Title IX violations
is a monumental shift. Indiana universities and schools need to revisit
their current Title IX policies to make sure they incorporate due process
protections in the form of a quasi-criminal proceeding, a level not previously
required in Title IX policies as well as other new obligations established
under the 2020 rules.

The experienced Indiana Title IX attorneys at Keffer Hirschauer LLP have
been closely monitoring the Trump administration’s approach to Title
IX. We are dedicated to helping Indiana universities and schools understand
their obligations following the changes to Title IX and implement those
changes through sound policy revision and effective defense against Title
IX allegations.

Gray Areas Created by Changes to Title IX

Anyone accused of Title IX violations during this period of upheaval is
dealing with shifting sands. The new Title IX rules provide an effective
date for Title IX policy compliance, but they do not make clear if or
how that applies to existing or pending Title IX complaints. Specifically,
the rules do not make clear whether they are effective as to:

Sexual harassment claims that are based on events that occurred before
August 14 but for which the investigative process had not yet begun

Sexual harassment claims that are under investigation but not yet completed
as of the August 14 effective date

Sexual harassment claims that were resolved prior to the August 14 effective
date but from which one or both parties wishes to appeal

In each of these situations, the accused would want to take advantage of
the increased rights and protections afforded by the new Title IX regulations,
yet schools have no guidance on whether the new rules apply retroactively.

Schools and those accused of Title IX violations can’t wait for the
dust to settle. They must act swiftly to ensure their rights are protected.
Working with experienced Indiana Title IX attorneys who are tracking these
legislative changes and familiar with the
Title IX processes of different Indiana universities and schools offers you the best chance of protecting yourself against
a Title IX complaint.

Resources for Understanding the Changes to Title IX

Universities and schools wrestling to revise Title IX policies in light
of the new regulations need significant guidance. In some areas, the new
regulations introduce new requirements and terms without definitions necessary
for an indisputable understanding. To understand their new obligations
and the Trump administration’s shift in direction evidenced by the
changes to Title IX, universities and schools need authoritative guidance.

Some valuable resources for understanding how the new regulations change
the direction of Title IX include:

By far, universities and schools benefit most from working with an experienced
Title IX lawyer who has a thorough understanding of previous administration
Title IX interpretations, how the changes to Title IX through the 2020
final rule change school burdens, and where gray areas exist in the final
rule. In Indiana, Keffer Hirschauer LLP attorneys are the go-to resource
for schools striving for compliance and in need of defense for Title IX claims.

For Compliance and Defense Matters Following Changes to Title IX, Keffer
Hirschauer LLP

Many Indiana universities and schools will need to revise their Title IX
policies in a very short period of time to remain compliant under the
new Title IX regulations. Such policy adjustments greatly impact the claims
investigated, the services offered to the complainant and the accused,
the rights afforded to the accused, and the very nature of the investigation
resolution process. Working with a Title IX attorney who is tracking these
changes is key to ensuring a school’s federal funding and the protection
of rights now guaranteed to those accused.

At
Keffer Hirschauer LLP, we know the stakes are high for the accused, so we use our skills, experience,
and the close watch of changes to Title IX policy to protect your rights
throughout the Title IX process. We partner vigorous criminal defense
practice with our thorough knowledge of Title IX, related legislation,
and the current Title IX processes at Indiana schools and universities
to give respondents the protection needed to defend against Title IX allegations.
Don’t delay. Engaging an experienced Title IX defense lawyer early
in the process is key to assuring your rights or the rights of your child
are fully protected.

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